Mediation must top agenda in family law cases, says judge- Irish Times 11th October 2010

The Irish Times - Monday, October 11, 2010

Mediation must top agenda in family law cases, says judge

CAROL COULTER Legal Affairs Editor

MEDIATION
MUST be put at the top of the agenda so that money that is available
for the legal system is channelled into whatever alternative dispute
resolution agency there is, according to Supreme Court judge Mr Justice
Liam McKechnie.

Mr Justice McKechnie was speaking at a
Canadian-Irish judicial conference at the weekend attended by judges
from Canada and the US as well as Ireland.

“Judges can play an
important role. If they keep this question of mediation to the fore
there will eventually be progress,” Mr Justice McKechnie told the
conference, which was organised by the law department of Waterford
Institute of Technology.

In family law cases, the real problem is
the irrationality of people’s behaviour, he said. The irrationality
comes from the fact that the people involved have not separated in the
same way, that one person is further away from the relationship than the
other.

In divorce and judicial separation, there are always
issues of asset distribution. In commercial cases, which involve asset
distribution, people behave rationally. If one could deal with the
irrationality in family law cases one would have a commercial case. It
is the irrationality in human behaviour, especially when relationships
break down, that has to be dealt with, he added.

Mr Justice Henry
Abbott, the High Court judge who has dealt with family law for the past
four years, told the conference that, due to the internationalisation of
family law, he has to be aware that his orders may have to be enforced
by judges in Europe, the UK or Australia.

He pointed out that
Irish family law had been modified by various international instruments,
including the jurisprudence of the European Court of Human Rights and
EU regulations. He also stressed the importance of judges steering
people away from litigation and towards mediation.

Mandatory mediation for family law cases exists in many jurisdictions in the US and Canada, the conference was told.

Mediation
is mandatory for all family custody cases in California, according to
Judge Thomas Trent Lewis of the Los Angeles Superior Court, and
mediators can testify in court. He said that 75 per cent of cases were
resolved through mediation. Parental education was also mandatory, and
the courts could order parents to undertake a year’s counselling.

Justice
R James Williams of the Supreme Court of Nova Scotia said Ireland was
in a unique position to be a leader in addressing concerns about the
need for change in family law at an international level.

He said
Ireland had shown it had a culture of openness to change in family law
through the divorce referendum, and as a member of the EU it was in a
position to inform the evolution of family law under common law with the
experience of the European inquisitorial system.

He said there
had been public reviews of family law and the family law system in a
number of jurisdictions. These showed common concerns about the
adversarial system, about the need for alternative dispute resolution
and about delays in the system and high costs.